BILL NUMBER: AB 2717 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 28, 2008
AMENDED IN ASSEMBLY MARCH 24, 2008
INTRODUCED BY Assembly Member Lieber
FEBRUARY 22, 2008
An act to amend Section 56505 of the Education Code, relating to
special education.
LEGISLATIVE COUNSEL'S DIGEST
AB 2717, as amended, Lieber. Special education: due process
hearing: burden of proof.
Existing law requires school districts, county offices of
education, and special education local plan areas to comply with
state laws that conform to the federal Individuals with Disabilities
Education Act (IDEA), in order that the state may qualify for federal
funds available for the education of individuals with exceptional
needs. Existing law requires each noneducational and educational
agency that provides education, related services, or both, to
children who are individuals with exceptional needs to establish and
maintain all of the procedural safeguards under IDEA, including
mediation of disputes and due process hearings. Existing law
prescribes procedural requirements for the hearing, including
requirements that govern the decisionmaking process of the hearing
officer. Existing law further provides that the requirements
regarding the decisionmaking process of the hearing officer do not
alter the burden of proof required in a due process hearing, or
prevent a hearing officer from ordering a compensatory remedy for an
individual with exceptional needs. Existing case law assigns the
burden of proof in a due process hearing challenging an
individualized education program (IEP) to the party seeking relief.
This bill instead would assign the initial burden of
presenting a prima facie case, as defined, in a due process hearing
to a parent or guardian who is challenging the appropriateness of his
or her child's IEP. Upon a determination by a hearing officer that a
parent or guardian has presented a prima facie case, the bill would
assign the burden of proof, as defined, in a due
process hearing to the responsible
local educational agency , except with regard to
. The bill would assign the burden of proof to a
parent or guardian in a due process hearing regarding the
appropriateness of a unilateral parental placement or related
services in a case where , and in which
the parent or guardian is seeking tuition reimbursement for the
placement or services. The bill would require the party that has
the burden of persuasion to meet that burden by a preponderance of
the evidence. The party that has the burden of proof would not
prevail under the bill as to an issue for which a hearing
officer determines that the evidence is in equipoise.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 56505 of the Education Code is amended to read:
56505. (a) The state hearing shall be conducted in accordance
with regulations adopted by the board.
(b) The hearing shall be held at a time and place that is
reasonably convenient to the parent or guardian and the pupil.
(c) (1) The hearing shall be conducted by a person who, at a
minimum, possesses knowledge of, and the ability to understand, the
provisions of this part and related state statutes and implementing
regulations, the federal Individuals with Disabilities Education Act
(20 U.S.C. Sec. 1400 et seq.), federal regulations pertaining to that
federal act, and legal interpretations of this part and federal law
by federal and state courts, and who satisfactorily has completed
training pursuant to this subdivision. The Superintendent shall
establish standards for the training of hearing officers, the degree
of specialization of the hearing officers, and the quality control
mechanisms to be used to ensure that the hearings are fair and the
decisions are accurate.
(2) The hearing officer shall possess the knowledge and ability to
conduct hearings in accordance with appropriate, standard legal
practice.
(3) The hearing officer shall possess the knowledge and ability to
render and write decisions in accordance with appropriate, standard
legal practice.
(4) A due process hearing shall not be conducted by an individual
listed in Section 1415(f)(3)(A)(i) of Title 20 of the United States
Code. Pursuant to Section 300.511(c)(2) of Title 34 of the Code of
Federal Regulations, a person who is qualified to conduct a hearing
is not an employee of the agency solely because he or she is paid by
the agency to serve as a hearing officer. The hearing officer shall
encourage the parties to a hearing to consider the option of
mediation as an alternative to a hearing.
(d) Pursuant to Section 300.518(a) of Title 34 of the Code of
Federal Regulations, during the pendency of the hearing proceedings,
including the actual state-level hearing, or judicial proceeding
regarding a due process hearing, the pupil shall remain in his or her
present placement, except as provided in Section 300.533 of Title 34
of the Code of Federal Regulations, unless the public agency and the
parent or guardian agree otherwise. A pupil applying for initial
admission to a public school, with the consent of his or her parent
or guardian, shall be placed in the public school program until all
proceedings have been completed. As provided in Section 300.518(d) of
Title 34 of the Code of Federal Regulations, if the decision of a
hearing officer in a due process hearing or a state review official
in an administrative appeal agrees with the parent or guardian of the
pupil that a change of placement is appropriate, that placement
shall be treated as an agreement between the state or local
educational agency and the parent or guardian. In accordance with
Section 300.518(c) of Title 34 of the Code of Federal Regulations, if
a due process hearing request involves an application for initial
services from a child who is transitioning from an early education
program under Chapter 4.4 (commencing with Section 56425) to a
special education program serving individuals with exceptional needs
between the ages of three to five years, inclusive, under Chapter
4.45 (commencing with Section 56440), and is no longer eligible for
early education services because the child has turned three years of
age, the local educational agency is not required to provide early
education services that the child had been receiving. If the child is
found eligible for special education and related services for
children age three years of age and older, and the parent or guardian
consents to the initial provision of special education and related
services under Section 300.300(b) of Title 34 of the Code of Federal
Regulations, the local educational agency shall provide those special
education and related services that are not in dispute between the
parent or guardian and the local educational agency.
(e) A party to the hearing held pursuant to this section shall be
afforded the following rights consistent with state and federal
statutes and regulations:
(1) The right to be accompanied and advised by counsel and by
individuals with special knowledge or training relating to the
problems of individuals with exceptional needs.
(2) The right to present evidence, written arguments, and oral
arguments.
(3) The right to confront, cross-examine, and compel the
attendance of witnesses.
(4) The right to a written, or, at the option of the parent or
guardian, electronic verbatim record of the hearing.
(5) The right to written, or, at the option of the parent or
guardian, electronic findings of fact and decisions. The record of
the hearing and the findings of fact and decisions shall be provided
at no cost to parents or guardians in accordance with Section 300.512
(c)(3) of Title 34 of the Code of Federal Regulations. The findings
and decisions shall be made available to the public after any
personally identifiable information has been deleted consistent with
the confidentiality requirements of Section 1417(c) of Title 20 of
the United States Code and also shall be transmitted to the Advisory
Commission on Special Education pursuant to Section 1415(h)(4) of
Title 20 of the United States Code.
(6) The right to be informed by the other parties to the hearing,
at least 10 days prior to the hearing, as to what those parties
believe are the issues to be decided at the hearing and their
proposed resolution of those issues. Upon the request of a parent
or guardian who is not represented by an attorney, the
agency responsible for conducting hearings shall provide a mediator
to assist the parent or guardian in identifying the issues
and the proposed resolution of the issues.
(7) The right to receive from other parties to the hearing, at
least five business days prior to the hearing, a copy of all
documents and a list of all witnesses and their general area of
testimony that the parties intend to present at the hearing. Included
in the material to be disclosed to all parties at least five
business days prior to a hearing shall be all assessments completed
by that date and recommendations based on the assessments that the
parties intend to use at the hearing.
(8) The right, pursuant to Section 300.512(a)(3) of Title 34 of
the Code of Federal Regulations, to prohibit the introduction of any
evidence at the hearing that has not been disclosed to that party at
least five business days before the hearing.
(f) (1) In accordance with Section 1415(f)(3)(E) of Title 20 of
the United States Code, the decision of a due process hearing officer
shall be made on substantive grounds based on a determination of
whether the child received a free appropriate public education.
(2) In matters alleging a procedural violation, a due process
hearing officer may find that a child did not receive a free
appropriate public education only if the procedural violation did any
of the following:
(A) Impeded the right of the child to a free appropriate public
education.
(B) Significantly impeded the opportunity of the parents
a parent or guardian to participate in the
decisionmaking process regarding the provision of a free appropriate
public education to the child of the parents
a parent or guardian .
(C) Caused a deprivation of educational benefits.
(3) The hearing conducted pursuant to this section shall be
completed and a written, reasoned decision, including the reasons for
a nonpublic, nonsectarian school placement, the provision of
nonpublic, nonsectarian agency services, or the reimbursement for the
placement or services, taking into account the requirements of
subdivision (a) of Section 56365, shall be mailed to all parties to
the hearing not later than 45 days after the expiration of the 30-day
period pursuant to subdivision (c) of Section 56501.5. Either party
to the hearing may request the hearing officer to grant an extension.
The extension shall be granted upon a showing of good cause. An
extension shall extend the time for rendering a final administrative
decision for a period only equal to the length of the extension.
(4) This subdivision does not preclude a due process hearing
officer from ordering a local educational agency to comply with
procedural requirements under this chapter.
(g) (1) The responsible educational agency shall have the burden
of proof in the hearing conducted pursuant to this section, except
with regard to the appropriateness of a unilateral parental placement
or related services in a case where the parent or guardian is
seeking tuition reimbursement for the placement or services.
(2) For purposes of this subdivision, "burden of proof" includes
the burden of persuasion and the burden of production.
(g) (1) Subdivision (f) does not alter the burden of proof
required in a due process hearing, or prevent a hearing officer from
ordering a compensatory remedy for an individual with exceptional
needs.
(2) In a due process hearing conducted pursuant to this section in
which a parent or guardian is challenging the appropriateness of his
or her child's individualized education program to provide a free
appropriate public education, the parent or guardian shall have the
initial burden of presenting a prima facie case. A prima facie case
is demonstrated if all of the following elements are met:
(A) The child qualifies for special educational services.
(B) An individualized education program has been created for the
child.
(C) The parent or guardian asserts specific facts which, if
proven, demonstrate that the individualized education program failed
or would likely fail to provide the child with a free appropriate
public education.
(3) Upon a determination by a hearing officer that a parent or
guardian has presented a prima facie case as described in paragraph
(2), the local educational agency then shall have the burden of proof
to demonstrate that the individualized education program is
appropriate to provide the child with a free appropriate public
education.
(4) Notwithstanding paragraphs (2) and (3), in a due process
hearing conducted pursuant to this section regarding the
appropriateness of a unilateral parental placement or related
services, and in which the parent or guardian is seeking tuition
reimbursement for the placement or services, the parent or guardian
shall have the burden of proof.
(5) In a due process hearing conducted pursuant to this section,
the party that has the burden of persuasion shall meet that burden by
a preponderance of the evidence. The party that has the burden of
proof shall not prevail as to an issue for which a hearing officer
determines that the evidence is in equipoise.
(6) For purposes of this subdivision, "burden of proof" includes
the burden of persuasion and the burden of production.
(h) The hearing conducted pursuant to this section shall be the
final administrative determination and binding on all parties.
(i) In decisions relating to the placement of individuals with
exceptional needs, the person conducting the state hearing shall
consider cost, in addition to all other factors that are considered.
(j) In a hearing conducted pursuant to this section, the hearing
officer shall not base a decision solely on nonsubstantive procedural
errors, unless the hearing officer finds that the nonsubstantive
procedural errors resulted in the loss of an educational opportunity
to the pupil or interfered with the opportunity of the parent or
guardian of the pupil to participate in the formulation process of
the individualized education program.
(k) This chapter does not preclude a party aggrieved by the
findings and decisions in a hearing under this section from
exercising the right to appeal the decision to a state court of
competent jurisdiction. An aggrieved party also may exercise the
right to bring a civil action in a district court of the United
States without regard to the amount in controversy, pursuant to
Section 300.516 of Title 34 of the Code of Federal Regulations. An
appeal shall be made within 90 days of receipt of the hearing
decision. During the pendency of an administrative or judicial
proceeding conducted pursuant to Chapter 5 (commencing with Section
56500), the child involved in the hearing shall remain in his or her
present educational placement, unless the public agency and the
parent or guardian of the child agree otherwise. An action brought
under this subdivision shall adhere to Section 300.516(c) of Title 34
of the Code of Federal Regulations.
(l) A request for a due process hearing arising under subdivision
(a) of Section 56501 shall be filed within two years from the date
the party initiating the request knew or had reason to know of the
facts underlying the basis for the request. In accordance with
Section 1415(f)(3)(D) of Title 20 of the United States Code, the time
period specified in this subdivision does not apply to a parent
or guardian if the parent or guardian was prevented
from requesting the due process hearing due to either of the
following:
(1) Specific misrepresentations by the local educational agency
that it had solved the problem forming the basis of the due process
hearing request.
(2) The withholding of information by the local educational agency
from the parent or guardian that was required under this
part to be provided to the parent or guardian .
(m) Pursuant to Section 300.511(c) of Title 34 of the Code of
Federal Regulations, each public agency shall keep a list of the
persons who serve as due process hearing officers, in accordance with
Section 56504.5, and the list shall include a statement of the
qualifications of each of those persons. The list of hearing officers
shall be provided to the public agencies by the organization or
entity under contract with the department to conduct due process
hearings.
(n) A party who filed for a due process hearing prior to the
effective date of this section is not bound by the two-year statute
of limitations time period in subdivision (l) if the party filed a
request within the three-year statute of limitations provision
pursuant to subdivision (l) as it read prior to October 9, 2006.
(o) This section shall become operative October 9, 2006.